Dcpp v. H.C. and T.O., in the Matter of E.O.

• Court: New Jersey Superior Court Appellate Division
• Decided: April 11, 2025
• Docket: A-1067-23
• Status: Unpublished

Opinion

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1067-23

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

H.C.,1

Defendant,

and

T.O.,

Defendant-Appellant. _________________________

IN THE MATTER E.O., a minor. _________________________

Submitted February 4, 2025 – Decided April 11, 2025

Before Judges Sumners and Susswein.

1 We use initials and pseudonyms to protect the confidentiality of these proceedings. R. 1:38-3(d)(12). On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FN-20-0062-22.

Jennifer N. Sellitti, Public Defender, attorney for appellant (Arthur D. Malkin, Designated Counsel, on the briefs).

Matthew J. Platkin, Attorney General, attorney for respondent (Donna Arons, Assistant Attorney General, of counsel; Alicia Y. Bergman, Deputy Attorney General, on the brief).

Jennifer N. Sellitti, Public Defender, Law Guardian, attorney for minor E.O. (Meredith Alexis Pollock, Deputy Public Defender, of counsel; Jennifer M. Sullivan, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

Defendant T.O. appeals a Family Part order that he violated N.J.S.A. 9:6-

8.21(c)(3) by sexually abusing his then-thirteen-year-old daughter ("victim" or

"daughter") once in January 2020. Having considered the parties' arguments,

the record, and the applicable legal principles, we affirm.

I.

Following a three-day fact-finding hearing, the Family Part judge entered

an order and oral decision finding that defendant sexually abused his daughter.

The victim, who was fifteen years old when the hearing was held, did not testify.

Defendant neither testified nor presented any witnesses. Testimony was limited

A-1067-23 2 to three Division of Child Protection and Permanency (Division) witnesses –– a

Division caseworker, the Union County Prosecutor's Office (UCPO)

investigating detective, and the Division's psychological expert –– whose

testimonies focused primarily on the victim's out-of-court statements concerning

the alleged abuse. We briefly summarize each witnesses' testimony.

Veronica Silva

Division caseworker Silva initiated an investigation by visiting the

victim's family home after a counselor at the victim's school reported the

victim's allegations that her father had sexually abused her. Silva interviewed

the victim, who seemed "a little bit uncomfortable" and "a little nervous . . .

because she didn't want her father to get in trouble." Considering the victim's

reticence and the interview took place at her home while her mother was there,

Silva gave her a notebook to write her responses to Silva's questions rather than

answering verbally.

After the victim wrote in the notebook that the abuse happened two years

ago, she then tearfully described to Silva the sexual acts her father performed

on her. The victim said she told her mother who immediately confronted her

father. Her father denied the accusation and left the house for a few days and

when he returned, they avoided each other. The victim further told Silva that

A-1067-23 3 her maternal uncle and paternal aunt learned of her allegations during a family

meeting, after which she lived with her aunt from July to December 2020.

Silva next interviewed H.C., the victim's mother.2 Her mother confirmed

that her daughter told her about the alleged abuse, but claimed it was a lie to

"just . . . manipulate" the Division. The mother said her daughter falsely accused

her father because she wanted to live with her friend.

UCPO Detective Jennifer Smith

The same day the victim's allegations were reported to the Division,

UCPO Detective Jennifer Smith conducted a videotaped interview of the victim

at the Child Advocacy Center, which was played in court. Defendant did not

object to the video being admitted into evidence. During the interview, the

victim graphically described her fathers' sexual abuse, which happened in the

early morning of January 4, 2020. We need not detail the abuse to resolve this

appeal.

The victim said that, after she told her mother the next day about the

incident, her mother confronted her father. Her mother asked her if he went "all

the way," and was "relieved" when she said "no." Her mother advised her "to

2 The trial judge "made no findings as to [H.C], because no claims of abuse or neglect have been made against [her]." A-1067-23 4 give out an olive branch" to her father. The victim said her father came to her

bedroom and, after realizing her door was locked, he "lightly apologized,"

saying he "thought it was a dream."

The victim was able to verify the date of the abuse because she wrote

down what happened the next day in a note on her cellphone. She did not have

the original document but had "copied and pasted" its contents into a "Google

Document." As she searched through her phone, Det. Smith left the room.

When the detective returned, the victim said she was going to edit the note

because something was "not true." However, after Det. Smith asked her not to

change anything, she "hit the undo button." Det. Smith then read aloud the note,

which explicitly detailed the abuse. Det. Smith testified there was no way for

her to confirm the date the victim's note was made or if there were other prior

versions of the note.

Det. Smith also conducted a video interview of the victim's mother, which

was played in court. Defendant objected to the admissibility of the interview as

hearsay, but the judge overruled the objection, reasoning she was "a party" to

the case and "[i]t's not offered for the truth [of] the matter asserted." The mother

called her daughter a liar and a "very manipulative, sneaky child", claiming the

accusations were made up because, "at the time," her daughter did not like that

A-1067-23 5 she and defendant were having some marital discord. Prior to making the

accusations, her daughter told her to leave defendant, saying "he doesn't treat

you right," and "why don't you kick him out?" However, she felt her daughter

"was just touched" without any sexual penetration.

Amy Kavanaugh, Ph.D.

Dr Kavanaugh, an expert in psychology with twenty-seven years'

experience assessing children for sexual abuse and neglect, testified regarding

her evaluation of the victim, her interview of the victim's aunt, and her review

of the Division's and law enforcement's records. The victim told Dr. Kavanaugh

that her father sexually abused her but declined to discuss it because it "was very

difficult and uncomfortable for her." The victim shared that the abuse caused :

her: pre-existing bulimia to "peak" after she locked herself in her bathroom; to

isolate herself, even sleeping in her closet and "lock[ing] herself in the bathroom

for two days"; and to have "vivid dreams" and "nightmares" about the abuse; to

be "scared to be alone with men."

Dr. Kavanaugh diagnosed the victim with post-traumatic stress disorder

(PTSD), "likely" due to "the alleged sexual abuse by her father, the difficult

family environment with yelling[,] [] a lot of parental conflict, and some

domestic violence." The doctor was aware of the victim's "behavioral issues"

A-1067-23 6 prior to the alleged abuse but did not review the victim's previous therapeutic or

psychiatric records. Dr. Kavanaugh did not opine that the sexual abuse occurred

but said it was "suspected" based on "[the victim's] allegations of what happened

with her father," "all of her statements to everybody," and "all the records"

reviewed. Dr. Kavanaugh emphasized that she never "confirm[s] for sexual

abuse," hence the diagnosis of "child sexual abuse suspected."

II.

In finding that defendant sexually abused his daughter, the Family judge

recognized that, without her testimony, he had to find evidential support through

"some independent corroboration."

The judge found credible Dr. Kavanaugh's opinion of suspected child

abuse based on her PTSD diagnosis of the victim that stemmed from

interviewing the victim and reviewing the Division's and law enforcement's

records. Specifically, the judge determined:

It is possible that the diagnostic impression[s] of Dr. Kavanaugh are not the result of an improper sexual abuse, but possible is not . . . the standard for judging a case.

....

[T]he and [PTSD] difficulties the [victim] was having could be from [her] preexisting exhibited problems which include psychiatric care with medication, a

A-1067-23 7 suicide attempt, eating disorders, relationship problems between the parents, and domestic violence occurring in the home.

While all of that could be true, I find that the opinion of Dr. Kavanaugh linking . . . her impressions of post- traumatic stress disorder with the sexual abuse provide sufficient corroboration for the [c]ourt to consider the out-of-court statements the [victim] made about the alleged sexual abuse. Therefore, the evidence test of the out-of-court child statements is met in the [c]ourt's opinion.

The judge determined the Division's allegations against defendant were

substantiated by the victim's statements to Silva and Det. Smith, and the note

she wrote on her cell phone. The judge found the victim's statements and

demeanor with Det. Smith had "the absolute ring of credibility, especially [her]

ongoing statements . . . [that] she did not want to get her father in trouble," and

because she "cr[ied] and asked that the police not be called." The judge observed

that, during Det. Smith's interview, the victim "had a very detailed memory of .

. . the incident." As to the cellphone note, the judge found it had "every

appearance of being a contemporaneous document made by the [victim]," and

rejected defendant's argument that it was a "cooked up, late invented" document.

The judge acknowledged he "admit[ted] into evidence the contentions of

[the victim's] mother," but reiterated her statements were not being "offered for

the truth of the matter asserted." The mother did not testify.

A-1067-23 8 Ultimately, the judge found the victim's "statements have the indicia of

trustworthiness that far outweigh the arguments made by the defense," and that

the Division established "by the preponderance of the evidence that the improper

abuse occurred."

III.

Defendant contends on appeal that the judge erred in relying on the

Division's witnesses' testimony concerning the victim's out-of-court statements

and the diagnosis that the victim suffers from PTSD to support the finding of

sexual abuse. We, however, agree with the Division and Law Guardian that the

order was based on admissible credible evidence in the record.

A.

Title Nine provides that a child is abused if a "parent or guardian . . .

commits or allows to be committed an act of sexual abuse against the child."

N.J.S.A. 9:6-8.21(c)(3). "In a fact-finding hearing (1) any determination that

the child is an abused or neglected child must be based on a preponderance of

the evidence and (2) only competent, material and relevant evidence may be

admitted." N.J.S.A. 9:6-8.46(b).

It is well settled that our review of a trial judge's fact-finding function is

limited. "The general rule is that findings by the trial judge are binding on

A-1067-23 9 appeal when supported by adequate, substantial, credible evidence." Cesare v.

Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Inv'rs

Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Deference to a family judge is

particularly appropriate due to "the family courts' special jurisdiction and

expertise in family matters." Id. at 413. Thus, "we 'should not disturb the factual

findings and legal conclusions of the trial judge unless . . . convinced that they

are so manifestly unsupported by or inconsistent with the competent, relevant

and reasonably credible evidence as to offend the interests of justice' or . . .

determine the court has palpably abused its discretion." Parish v. Parish, 412

N.J. Super. 39, 47 (App. Div. 2010) (first alteration in original) (quoting Cesare,

154 N.J. at 412).

For a judge to determine a child was abused under Title Nine, "previous

statements made by the child relating to any allegations of abuse or neglect shall

be admissible in evidence; provided, however, that no such statement, if

uncorroborated, shall be sufficient to make a fact finding of abuse or neglect."

N.J.S.A. 9:6-8.46(a)(4). Although a "child's hearsay statement may be admitted

into evidence, [it] may not be the sole basis for a finding of abuse or neglect."

N. J. Div. of Youth and Fam. Servs. v. P.W.R., 205 N.J. 17, 33 (2011). This

limitation applies only to the court's reliance on the out-of-court statements for

A-1067-23 10 the finding of abuse or neglect, not to the statements' admissibility. N. J. Div.

of Child Prot. & Permanency v. J.A., 436 N.J. Super. 61, 66-67 (App. Div.

2014).

The corroborative evidence "need only provide support for the out -of-

court statements," it does not have to "relate directly to the alleged abuser." N.

J. Div. of Youth Fam. Servs v. Z.P.R., 351 N.J. Super. 427, 435-36 (App. Div.

2002) ("It would be a rare case where evidence could be produced that would

directly corroborate the specific allegation of abuse between the child and the

perpetrator"). Indirect or circumstantial evidence, such as psychological

evidence, may suffice as corroboration. Id. at 436; see also N.J. Div. of Child

Prot. & Permanency v. I.B., 441 N.J. Super 585, 597-98 (App. Div. 2015)

(holding a psychologist's testimony linking a child's adjustment disorder to

alleged sexual abuse admissible to corroborate the child's out-of-court

statements). The "most effective type[] of corroborative evidence may be . . .

medical or scientific evidence." N.J. Div. of Youth & Fam. Servs. v. L.A., 357

N.J. Super. 155, 166 (App. Div. 2003).

B.

Guided by these principles, we discern no basis to upset the judge's order.

The judge did not abuse his discretion in admitting the victim's out-of-court

A-1067-23 11 statements detailing defendant's abuse. See N.J. Div. of Child Prot. &

Permanency v. N.T., 445 N.J. Super. 478, 492 (App. Div. 2016) (internal

quotation and citation omitted) (We afford "[c]onsiderable latitude . . . [to a]

trial court in determining whether to admit evidence, and that determination will

be reversed only if it constitutes an abuse of discretion."). His reliance on the

victim's out of court statements were supported by his sound assessment that

they were reliable and trustworthy accounts of the abuse inflicted upon the

victim by defendant.

We reject defendant's contention, based upon N.J. Div. of Child Prot. &

Permanency v. N.B., 452 N.J. Super. 513, 523 (App. Div. 2017), that Dr.

Kavanaugh impermissibly "opine[d] about the trustworthiness of [the victim's]

hearsay statements." Reliance on N.B. is misplaced. There, we held the trial

court impermissibly relied on the hearsay report of a psychologist who did not

testify to corroborate the youth's hearsay statements. N.B., 452 N.J. Super at

516. The "court relied upon [the expert's] conclusion that [the minor] suffered

from PTSD as a result of exposure to domestic violence," but such reliance was

"at odds with our rules of evidence and the case law governing the admission of

complex opinions of non-testifying experts." Id. at 524 (emphasis added).

A-1067-23 12 In our case, Dr. Kavanaugh testified, thereby giving defendant the

opportunity to question her credibility through cross-examination. Moreover,

because she did not confirm that sexual abuse occurred, she did not "opine about

the trustworthiness of [the victim's]" out-of-court statements. Id. at 523. That

was properly left for the judge as fact finder.

The judge correctly determined Dr. Kavanaugh's connection of the

victim's diagnosis with the alleged abuse "provide[d] support for the out-of-

court statements" made by the victim and were thus sufficiently corroborative.

Z.P.R., 351 N.J. Super. at 436. Defendant erroneously emphasizes that Dr.

Kavanaugh could not say the PTSD diagnosis "was only a result of the alleged

sexual abuse." (Emphasis added). The multi-causal nature of the victim's

PTSD, however, does not diminish Dr. Kavanaugh's opinion that the sexual

abuse was a contributing factor. Indeed, the judge's embrace of Dr. Kavanaugh's

testimony was appropriate in finding that defendant abused his thirteen-year-old

daughter.

We also reject defendant's claim that his due process rights were denied

because he did not have the opportunity to cross-examine his daughter, and the

trial judge should have conducted an in camera interview. See Rule 5:12-4(b).

As the Division and the Law Guardian correctly point out, defendant neither

A-1067-23 13 objected to the introduction of the victim's interview with Det. Smith nor

requested that she be interviewed by the judge. We further agree with them that

in this proceeding, the victim's testimony was not required "unless the child's

testimony [was] necessary for the determination of the matter." Rule 5:12-4(b).

Because as noted above, the judge had sufficient evidence to reach his finding

of abuse, it was unnecessary to interview the victim.

To the extent we have not addressed any of defendants' arguments, it is

because we conclude they are without sufficient merit to warrant discussion in

a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

A-1067-23 14